“What are we allowed to do with people who file asylum claims in our country and what are we not allowed to do with them?”

Anna Lübbe analyses the refugee and human rights requirements necessary to assign asylum-seekers to different states on the basis of supra- or international responsibility agreements. Her research addresses policies, legislative reforms and courts as actors in the Common European Asylum System. In the interview, Lübbe addresses the difficulties of asylum policy and its recommendations for it.

October 16, 2018

During your Mercator Fellowship, you are researching legal issues concerning the way in which responsibility for refugees is assigned within the European asylum system. Which specific questions are your focus?

How responsibility for refugees should be assigned, both inside Europe and beyond its borders, is one of the most pressing questions of our time. Within Europe, the distribution of asylum seekers is governed by the Dublin System. From the outset this system was poorly enforced, and since the 2015/16 crisis at the latest has been deemed a failure. One of the reasons is that it does not provide for any appropriate burden sharing, as it is dominated by the principle of first entry. This means that whichever Dublin country the asylum seeker enters first is normally responsible. Though there has been no shortage of ideas for reform, the Member States are divided over the question of how to share responsibility fairly and have so far failed to agree on a reform concept. The external dimension, that is to say the allocation of refugee responsibility between Europe and non-European “migration partner states”, is increasingly becoming an issue, too. The European Asylum Procedures Directive contains stipulations in this regard; it is likewise set to be reformed, with much that is unclear and controversial here, too.

Both under the Dublin System and within the framework of Migration Partnerships, asylum seekers are assigned involuntarily to the state considered responsible for them. The legal questions that this raises are highly complex. 15 years on, the Dublin System still sees courts busy trying to establish the premises under which a country may deflect asylum seekers due to lack of responsibility. As yet, there has been comparatively little debate of the preconditions for the compulsory allocation of asylum seekers to non-European states. The reforms will throw up new questions, especially as there is a tendency to lower the standards that have applied hitherto. Given that this is the case, what are the standards below which reform lawmakers must not fall? What are we allowed to do with people who file asylum claims in our country – people for whom we do not wish to take asylum responsibility ourselves – and what are we not allowed to do with them? That is the subject of my research. Clarifying the legal aspects of the entire question of forced allocation has consequences when it comes to developing concepts for dealing with the flight phenomenon in a coordinated way at the supranational and international levels.

Above and beyond the issue of burden sharing, what makes the distribution of asylum seekers so complicated?

It is generally accepted that asylum seekers do not have the right to choose themselves the country in which to settle. It is therefore indeed easy to believe that everything will be resolved once states agree on who will take whom. However, the distribution of asylum seekers should not only be based on the solidarity principle, it must also uphold human and refugee rights. In past research projects, I elaborated principles designed to guide the allocation of refugee responsibility instead of the first entry principle: according to the minimum standard principle , no person may be assigned to a state in which they will be exposed to unacceptable conditions. The principle of reachability is designed to avoid producing refugees “in orbit”, and stipulates that no person may be assigned to a state that they cannot reach. The connection principle states that asylum seekers with particular connections to certain states, e.g. of a family nature, should primarily be allocated there. The efficiency principle states that the question of allocation should be resolved as quickly as possible. And the burden sharing principle stipulates that asylum seekers should be assigned to countries on a fair distribution basis. With the exception of the burden sharing principle, these principles all aim to overcome humanitarian problems associated with flight that will be largely resolved by the refugees themselves if they are allowed to choose freely where to seek asylum: refugees will always try to arrive as quickly as possible (efficiency principle), have a tendency to avoid places that they will find intolerable (minimum standard principle), and to head for places with which they feel a particular connection (connection principle). If they are unable to reach a certain place, they will seek asylum elsewhere (principle of reachability).

The greater the extent to which the allocation of asylum seekers to asylum states involves compulsion, the more difficult it will become to overcome these problems, and the more inhumane will be any system of allocation that ignores these principles. While the principles do not constitute legal standards in themselves, they nonetheless contain legally binding components which, if not complied with, will render the allocation unlawful and can be asserted in court. Compulsory allocations are thus made complicated by a whole host of aspects: that the states involved have to reach agreement on the allocation in every individual case; that contentious questions relating to the matter at hand arise even at this stage; that effective legal protection must be provided against every single referral decision; that the legal and actual circumstances in the destination state may have to be carefully reviewed, as may other particular circumstances in an individual case such as diseases, family circumstances etc. What is more, the more compulsion there is, the greater will be the tendency of asylum seekers to bypass the allocation system, and the more one will encounter cases of onward migration, multiple processing by the authorities and courts, asylum seekers going into hiding and other irregularities. Anyone who engages not only with concepts but with the realities of allocation will discover that the inefficiency stems by no means only from procedures that have yet to be optimized but also from the need to ensure that allocation upholds human and refugee rights. Ultimately, one will conclude that forced allocation systems cannot be implemented efficiently for large numbers of asylum seekers.

Which recommendations for asylum policy result from this realization?

The conclusion I would draw for asylum policy from the unavoidable complexity of forced allocation systems is that we should organize allocations with less compulsion and more agreement. This should not be confused with granting free choice to asylum seekers; although this would be a humane and efficient allocation mechanism, it raises burden sharing questions given that asylum countries are extremely unequal in terms of their attractiveness; furthermore, without reliable measures in place to protect certain states against becoming overburdened, it requires a relinquishment of control that is politically not enforceable. The response to the dilemma is process orientation: switching to a more efficient, cooperative rather than competitive system, and to one that takes the legitimate interests of all involved into consideration, can only happen gradually. Both within Europe and in the relationships between Europe and third countries, this will entail discussions that will see more issues raised than simply the allocation of asylum responsibility. What is important is that these conflicts are not resolved at the expense of the asylum seekers, with more and more compromises being made when it comes to protecting human and refugee rights. There are marked tendencies to do this at the political level. Research is needed here to establish the boundaries for reforms that involve lowering standards, and not only for politicians and lawmakers: the question of the legal premises for allocating asylum seekers is one that will also be raised before courts; they will have to incorporate the relevant corrections into the system as was already the case in the Dublin System.

Meanwhile, steps in the right direction could be measures that organize more accordance rather than compulsion: a greater consideration of particular connections and resources that asylum seekers may have with respect to certain states; a limited range of choices, as proposed for example by the European Parliament; incentives extending as far as conditional freedom of movement; bilaterally agreed commitments not to transfer refugees between similarly attractive asylum states; expansion of resettlement programmes; including qualitative concepts when it comes to burden sharing etc. More compliance with allocations would also be brought about by giving improved consideration to procedural requirements: people are more likely to accept an unpopular decision if it is reached within a process that they perceive as fair. Politicians currently tend to use a tougher approach and more sanctions to address the inefficiencies, yet this quickly reaches its legal limits. Aside from producing fewer legal disputes and irregularities, the consequence of more cooperative approaches would be that those affected would become more cooperative in turn, and that the potential they offer could be better identified and exploited. Perhaps one might then also move away from the unproductive viewpoint that refugees constitute only risks and a burden that need to be averted, and could focus to a greater extent on the opportunities that migration always offers as well.



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